#10 FIRST DIVISION

G.R. No. 164041. July 29, 2005

ROSENDO ALBA, minor, represented by his mother and natural
guardian, Armi A. Alba, and ARMI A. ALBA, in her
personal capacity, petitioners,
vs.
COURT OF APPEALS and ROSENDO C. HERRERA,
respondents.
PONENTE: YNARES-SANTIAGO, J.

Facts:
On 21 October 1996, respondent filed a petition in RTC Manila
for cancellation of entries in the birth certificate of petitioner
minor, to wit: (1) minors surname Herrera; (2) his filiation as
father; and (3) marriage to minors mother, Armi, alleging
they are false and that he married only once with Ezperanza
Santos.

On 13 January 1997, the RTC issued an Amended Order re -

scheduling the hearing of petition to 26 February 1997. Copy
of which was published in Today in its Jan 20, 27, and Feb 3,
1997 issues, and were also sent to Armi at No. 418 Arquiza St.,
Ermita, Manila (address per minors birth certificate), Local
Civil Registrar and Solicitor General.

During the hearing, only OSG appeared but filed no opposition,

while Armi was not present for she did not receive the Order,
the address provided being wrong. On 1 April 1997, the RTC
granted the petition which became final on 2 June 1997. On 24
November 2000, petitioners filed a petition for annulment of
judgment with CA on the grounds of extrinsic fraud and lack of
jurisdiction over their person.

Armi averred that: (1) respondent knew all along of her true
address where they cohabited as husband of wife, result of
which is the minor; and (2) she knew of the decision only on
26 February 1998; hence due process was denied. On 27
February 2004, CA dismissed the petition. Motion for
reconsideration was denied hence, the instant petition for
certiorari.

Issues:
1. Whether or not jurisdiction over Armis person was NOT
acquired; and
2. Whether or not extrinsic fraud is present, to warrant
annulment of judgment.

Ruling:

NO. Petition is Dismissed.

Under Section 2, Rule 47 of the 1997 Revised Rules of Civil

Procedure, judgments may be annulled on the grounds of lack
of jurisdiction and extrinsic fraud.[19]

Whether or not the trial court acquired jurisdiction over the

person of petitioner and her minor child depends on the nature
of private respondents action, that is, in personam, in
rem or quasi in rem. An action in personam is lodged against
a person based on personal liability; an action in rem is
directed against the thing itself instead of the person; while an
action quasi in rem names a person as defendant, but its
object is to subject that persons interest in a property to a
corresponding lien or obligation.[20]

Hence, petitions directed against the thing itself or

the res,[21] which concerns the status of a person,[22] like a
petition for adoption,[23]annulment of marriage,[24] or
correction of entries in the birth certificate,[25] as in the instant
case, are actions in rem.

In an action in personam, jurisdiction over the person of the

defendant is necessary for the court to validly try and decide
the case. In a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court, provided that
the latter has jurisdiction over the res. Jurisdiction over
the res is acquired either (a) by the seizure of the property
under legal process, whereby it is brought into actual custody
of the law; or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and
made effective.[26]The service of summons or notice to the
defendant is not for the purpose of vesting the court
with jurisdiction but merely for satisfying the due process
requirements.[27]

In the case at bar, the filing with the trial court of the petition
for cancellation vested the latter jurisdiction over
the res. Substantial corrections or cancellations of entries in
civil registry records affecting the status or legitimacy of a
person may be effected through the institution of a petition
under Rule 108 of the Revised Rules of Court, with the proper
Regional Trial Court.[28] Being a proceeding in rem, acquisition
of jurisdiction over the person of petitioner is therefore not
required in the present case. It is enough that the trial court is
vested with jurisdiction over the subject matter.

The service of the order at No. 418 Arquiza St., Ermita, Manila
and the publication thereof in a newspaper of general
circulation in Manila, sufficiently complied with the
requirement of due process, the essence of which is an
opportunity to be heard. Said address appeared in the birth
certificate of petitioner minor as the residence of Armi.
Considering that the Certificate of Birth bears her signature,
the entries appearing therein are presumed to have been
entered with her approval. Moreover, the publication of the
order is a notice to all indispensable parties, including Armi
and petitioner minor, which binds the whole world to the
judgment that may be rendered in the petition. An in
rem proceeding is validated essentially through
publication.[29] The absence of personal service of the order to
Armi was therefore cured by the trial courts compliance with
Section 4, Rule 108, which requires notice by publication,
thus:

SEC. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in
the province.

In Barco v. Court of Appeals, the trial court granted a

petition for correction/change of entries in a minors birth
certificate to reflect the name of the minors real father as well
as to effect the corresponding change of her surname. In
seeking to annul said decision, the other children of the
alleged father claimed that they are indispensable parties to
the petition for correction, hence, the failure to implead them
is a ground to annul the decision of the trial court. The Court of
Appeals denied the petition which was sustained by this Court
on the ground, inter alia, that while petitioner is indeed an
indispensable party, the failure to implead her was cured by
the publication of the order of hearing. Thus

Undoubtedly, Barco is among the parties referred to in Section 3 of Rule

108. Her interest was affected by the petition for correction, as any
judicial determination that June was the daughter of Armando would
affect her wards share in the estate of her father. It cannot be established
whether Nadina knew of Mary Joys existence at the time she filed the
petition for correction. Indeed, doubt may always be cast as to whether
a petitioner under Rule 108 would know of all the parties whose interests
may be affected by the granting of a petition. For example, a petitioner
cannot be presumed to be aware of all the legitimate or illegitimate
offsprings of his/her spouse or paramour. The fact that Nadina amended
her petition to implead Francisco and Gustilo indicates earnest effort on
her part to comply with Section 3 as quoted above.

Yet, even though Barco was not impleaded in the petition, the Court of
Appeals correctly pointed out that the defect was cured by compliance
with Section 4, Rule 108, which requires notice by publication, thus:
Section 4. Upon the filing of the petition, the court shall, by order, fix the
time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.

The purpose precisely of Section 4, Rule 108 is to bind

the whole world to the subsequent judgment on the
petition. The sweep of the decision would cover even
parties who should have been impleaded under Section
3, Rule 108, but were inadvertently left out. The Court
of Appeals correctly noted:

The publication being ordered was in compliance with, and

borne out by the Order of January 7, 1985. The actual
publication of the September 22, 1983 Order, conferred
jurisdiction upon the respondent court to try and decide the
case. While nobody appeared to oppose the instant petition
during the December 6, 1984 hearing, that did not divest the
court from its jurisdiction over the case and of its authority to
continue trying the case. For, the rule is well-settled, that
jurisdiction, once acquired continues until termination of the
case.

Verily, a petition for correction is an action in rem, an action

against a thing and not against a person. The decision on the
petition binds not only the parties thereto but the whole world.
An in rem proceeding is validated essentially through
publication. Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all who might
be minded to make an objection of any sort against the right
sought to be established. It is the publication of such notice
that brings in the whole world as a party in the case and vests
the court with jurisdiction to hear and decide it.[30]

Furthermore, extrinsic fraud, which was private

respondents alleged concealment of Armis present address,
was not proven. Extrinsic fraud exists when there is a
fraudulent act committed by the prevailing party outside of the
trial of the case, whereby the defeated party was prevented
from presenting fully his side of the case by fraud or deception
practiced on him by the prevailing party. Here, Armi
contended that private respondent is aware of her present
address because they lived together as husband and wife in
the condominium unit from 1982 to 1988 and because private
respondent continued to give support to their son until 1998.
To prove her claim, she presented (1) private respondents title
over the condominium unit; (2) receipts allegedly issued to
private respondent for payment of homeowners or association
dues; (2) a photocopy of a January 14, 1991 deed of sale of
the subject unit in favor of Armi; and (3) the subsequent title
issued to the latter. However, these documents only tend to
prove private respondents previous ownership of the unit and
the subsequent transfer thereof to Armi, but not the claimed
live-in relationship of the parties. Neither does the sale prove
that the conveyance of the unit was part of private
respondents support to petitioner minor. Indeed, intimate
relationships and family relations cannot be inferred from
what appears to be an ordinary business transaction.

Although the January 14, 1991 deed of sale[31] stated that

Armi resides at 1175 L. Guerrero St., Ermita, Manila, the same
is not sufficient to prove that private respondent has
knowledge of Armis address because the former objected to
the offer of the deed for being a mere photocopy.[32] The
counsel for petitioners even admitted that they do not have
the original of the deed and that per certification of the Clerk of
Court, the Notary Public who notarized the deed of sale did not
submit a copy of the notarized document as required by the
rules.[33] The deed cannot thus be the basis of ascribing
knowledge of Armis address to private respondent inasmuch
as the authenticity thereof was neither admitted by private
respondent nor proven by petitioners.
 While Armi presented the alleged love letters/notes from
private respondent, they were only attached as annexes to the
petition and not formally offered as evidence before the Court
of Appeals. More importantly, said letters/notes do not have
probative value because they were mere photocopies and
never proven to be an authentic writing of private respondent.
In the same vein, the affidavits[34] of Armi and her sister,
Corazon Espiritu, are of no evidentiary weight. The basic rule
of evidence is that unless the affiants themselves are placed
on the witness stand to testify on their affidavits, such
affidavits must be rejected for being hearsay. Stated
differently, the declarants of written statements pertaining to
disputed facts must be presented at the trial for
cross-examination.[35] Inasmuch as Armi and her sister were
not presented before the Court of Appeals to affirm the
veracity of their affidavits, the same are considered hearsay
and without probative value.

Ei incumbit probotio qui dicit, non qui negat. He who

asserts, not he who denies, must prove.[36] Armis claim that
private respondent is aware of her present address is
anchored on the assertion of a live-in relationship and support
to her son. Since the evidence presented by Armi is not
sufficient to prove the purported cohabitation and support, it
follows that private respondents knowledge of Armis address
was likewise not proven. Thus, private respondent could not
have deliberately concealed from the court that which was not
shown to be known to him. The Court of Appeals therefore
correctly dismissed the petition for annulment of judgment on
the ground of failure to establish extrinsic fraud.

The proper remedy of a party aggrieved by a decision of

the Court of Appeals in an action to annul a judgment of a
Regional Trial Court is a petition for review on certiorari under
Rule 45 of the Revised Rules of Civil Procedure, where only
questions of law may be raised. The resort of petitioner to the
instant civil action for certiorari under Rule 65 is therefore
erroneous. The special civil action of certiorari will not be
allowed as a substitute for failure to timely file a petition for
review under Rule 45, which should be instituted within 15
days[37] from receipt of the assailed decision or resolution. The
wrong choice of remedy thus provides another reason to
dismiss this petition.[38]

Finally, petitioner failed to establish the merits of her

petition to annul the trial courts decision. In an action for
annulment of judgment, the petitioner must convince the
court that something may indeed be achieved should the
assailed decision be annulled.[39] Under Article 176[40] of the
Family Code as amended by Republic Act (RA) No. 9255, which
took effect on March 19, 2004, illegitimate children shall use
the surname of their mother, unless their father recognizes
their filiation, in which case they may bear the fathers
surname. In Wang v. Cebu Civil Registrar,[41] it was held that
an illegitimate child whose filiation is not recognized by the
father, bears only a given name and his mothers
surname. The name of the unrecognized illegitimate child
identifies him as such. It is only when said child is recognized
that he may use his fathers surname, reflecting his status as
an acknowledged illegitimate child.

In the present case, it is clear from the allegations of Armi

that petitioner minor is an illegitimate child because she was
never married to private respondent. Considering that the
latter strongly asserts that he is not the father of petitioner
minor, the latter is therefore an unrecognized illegitimate child.
As such, he must bear the surname of his mother.

- Digested [18 November 2016, 8:37]

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